Quinn and Secretary, Department of Social Services (Social services second review)

[2016] AATA 308

Quinn and Secretary, Department of Social Services (Social services second review) [2016] AATA 308 (13 May 2016)

Division	GENERAL DIVISION
File Number(s)	2015/5108
Re	Melanie Quinn
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	13 May 2016
Place	Brisbane

The decision under review is affirmed.

..........................[sgd]............................................

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – whether 20 points or more under impairment tables – whether conditions fully treated and fully stabilised - where less than 20 points under relevant impairment tables – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Administration) Act 1999 (Cth) ss 27, 63, 80

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6

CASES

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

Natalizi and Secretary, Department of Social Services [2014] AATA 803

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

REASONS FOR DECISION

Senior Member A C Cotter

13 May 2016

INTRODUCTION

1. Ms Melanie Quinn was granted Disability Support Pension (“DSP”) with effect from 17 April 2008.[1]

   [1] Exhibit 1, T Documents, T 15, page 104, Departmental customer record.

2. Following a review of her ongoing qualification for DSP, the Department made a decision, on 16 April 2015, to cancel Ms Quinn’s DSP. That was on the basis that she was assessed as having an impairment rating of less than 20 points.[2]

   [2] Exhibit 1, T Documents, T 9, pages 74-75, Centrelink letter to Ms Quinn dated 16 April 2015.

3. Ms Quinn unsuccessfully sought reviews of that decision, first by an Authorised Review Officer (“ARO”),[3] and then by the Social Services & Child Support Division (“SSCSD”) of this Tribunal.[4]

   [3] Exhibit 1, T Documents, T 11, pages 77-85, Authorised Review Officer’s letter to Ms Quinn and notes, dated 10 June 2015.

   [4] Exhibit 1, T Documents, T 2, pages 3-8, Social Services & Child Support Division (“SSCSD”) decision and reasons for decision, dated 16 September 2015.

4. Dissatisfied with the decision of the SSCSD, she has sought a review of the decision by the General Division of the Tribunal.

   BACKGROUND

5. It is useful to set out in some detail the review process that led to the decision to cancel Ms Quinn’s DSP.

6. In December 2014, Centrelink sent to Ms Quinn forms for completion by her and her doctor for the purpose of a review of her DSP qualification.[5]

   [5] Exhibit 1, T Documents, T 7, pages 53-67, Centrelink forms for DSP Review dated 22 December 2014.

7. In February 2015, Ms Quinn completed her form. Asked to list any disabilities, illnesses or injuries she had, she responded “disc degeneration” and “scoliosis”.[6]

   [6] Exhibit 1, T Documents, T 7, page 54, Medical Report, DSP review, dated 17 February 2015, Question 4.

8. Ms Quinn’s general practitioner, Dr Mohaned Zahran, also completed a report for the purpose of the review. After responding affirmatively to the question of whether Ms Quinn had one or more medical conditions that had a “significant impact” on her ability to function, he was asked to give details of those conditions, listing them in order of degree of impact on the ability to function, starting with the condition with most impact.[7] He described the condition having the most impact on Ms Quinn’s ability to function as “Degenerative facet arthropathy of the lumbar spine. Anomalous articulation between L5 and the sacrum”.[8] He described the impact on Ms Quinn’s ability to function as:

   Restricted range of movement of the lower back. Inability to sit continuously more than 30 minutes before she feels pain. Inability to drive continuously more than 1 (one) hour. Difficulty to maintain concentration because of the ongoing pain.[9]

   He thought that this impact on Ms Quinn’s ability to function would persist for more than 24 months and that her condition would likely deteriorate over time.[10] While not describing any other condition which had a significant impact on Ms Quinn’s ability to function, Dr Zahran did note that she suffered from Hypothyroidism, but that condition was generally well managed and caused minimal or limited impact on her ability to function.[11]

   [7] Exhibit 1, T Documents, T 7, page 58, Medical Report of Dr Mohaned Zahran, undated, Questions 4 and 5.

   [8] Ibid page 59.

   [9] Ibid page 61.

   [10] Ibid.

   [11] Ibid pages 62-65 and page 66, Question 6.

9. In March 2015, Ms Quinn attended a face to face assessment with a Job Capacity Assessor (“JCA”). The JCA noted that Ms Quinn had suffered from her spinal condition for more than 20 years, but it was stable with pain relief medication. No change in treatment was planned. Ms Quinn told the JCA that she was able to sit for 30 minutes on a good seat. She said she could stand for 15 minutes and that she walked for 40 minutes a day. She was able to drive for 30 minutes before needing to stop and stretch for 10 minutes before resuming driving. Ms Quinn said that she could stretch her arms above her head, although that caused her pain. She could only sleep on her side. Ms Quinn told the JCA that she was independent in activities of daily living; she did housework herself (including vacuuming, cleaning the bathroom, and pegging washing on a clothes horse to avoid reaching above head height). She said she could bend to touch her toes but found it difficult to return to a standing position following that action. She stated that she had no difficulty turning her head. Ms Quinn reported that she could bend to knee level and to floor level by squatting and standing slowly; she could squat to pick something up from floor level. The JCA noted that Ms Quinn sat through the 35 minute interview and at its conclusion, stood from a seated position without any apparent difficulty. From her review, the JCA concluded that Ms Quinn suffered a mild functional impact on activities involving spinal function; she recommended that five points be assigned under Table 4 (Spinal Function) of the Impairment Tables.[12]

   [12] Exhibit 1, T Documents, T 8, pages 69 and 70, report of Job Capacity Assessor (“JCA”) dated 19 March 2015.

10. As to Hypothyroidism, the JCA was of the opinion that there was no functional impact on activities requiring physical exertion or stamina. She considered that Ms Quinn could undertake exercise appropriate for her age for at least 30 minutes at a time and had no difficulty completing physically active tasks around her home and community. She therefore recommended that no impairment points be assigned in respect of that condition.[13]

    [13] Ibid pages 70-71.

11. The JCA also noted that Ms Quinn told her that she had been diagnosed with Post Traumatic Stress Disorder (“PTSD”) by a doctor in New South Wales 18 months earlier, following the passing of her fiancé. She had been treated with an anti-depressant medication. Ms Quinn told the JCA that she had seen a psychologist more than a year earlier, but could not remember who. She had not sought treatment from her current doctor in Hervey Bay (presumably Dr Zahran), although she received some counselling through Lifeline. Ms Quinn said that she had poor ability to concentrate and was reluctant to go out. The JCA was unable to confirm the condition as Ms Quinn had not raised her concern with her current doctor and had not been treated by her former doctor for over a year. She made no recommendation for the assignment of impairment points in respect of this condition.[14]

    [14] Ibid pages 69-70.

12. As to work capacity, the JCA concluded that Ms Quinn had a baseline work capacity of eight to 14 hours per week. She thought that, with intervention, Ms Quinn’s capacity for work within two years would be 15 to 22 hours per week. Ms Quinn told the JCA that she was currently studying to be a teacher’s aide and was also studying towards a Diploma of Business. She said that she undertook eight hours of study each week, although she had some difficulty with maintaining concentration. She said that she had worked as a cleaner, on and off, since the age of 15 (1987) until mid-2014, with the hours varying from four to 12 to 15 hours a week.[15]

    [15] Ibid page 72.

13. As I mentioned earlier, the Department subsequently cancelled Ms Quinn’s DSP, presumably on the basis of the information supplied by her and her doctor, and the report of the JCA.

14. Before I deal with the issues in this matter, it is timely to reflect on the relevant legislative provisions.

    THE LEGISLATIVE FRAMEWORK

15. Under s 80 of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”), if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for that payment, the Secretary is to determine that the payment be cancelled. The question of whether the person is qualified or not is to be determined as at the day on which the cancellation occurs.[16] In this case, that is 16 April 2015. It is irrelevant that a person may later again fulfil the requirements for a grant.[17]

    [16] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

    [17] See Freeman v Secretary, Department of Social Security (1988) 19 FCR 342, 345 (Davies J).

16. Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are: that the person has a physical, intellectual or psychiatric impairment; that the person’s impairment is of 20 points or more under the Impairment Tables; and that the person has a continuing inability to work.

17. The documents relating to the medical review of Ms Quinn’s DSP constituted a notice under s 63(2) of the Administration Act.[18] Under s 27(3) of that Act, if a person is receiving DSP and receives a notice under s 63(2), the Secretary, in assessing their qualification for that pension, must apply the Impairment Tables in force at the time the notice is given.[19] At that time (22 December 2014), the Impairment Tables in force were those made under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“2011 Determination”), whereas Ms Quinn’s original grant of DSP had been assessed under tables made under a previous determination.

    [18] Exhibit 1, T Documents, T 7, page 53, Medical Review DSP forms dated 22 December 2014.

    [19] See also Natalizi and Secretary, Department of Social Services [2014] AATA 803, [3] (SM Taylor).

18. The Impairment Tables under the 2011 Determination are function based, rather than diagnostic based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.

19. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[20] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[21]

    [20] See Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3).

    [21] Ibid s 6(4).

    ISSUE FOR THE TRIBUNAL

20. It is not in dispute that Ms Quinn suffers from an impairment.[22] She therefore satisfies the first of the criteria for qualification for DSP.

    [22] See Exhibit 3, Secretary’s Statement of Facts and Contentions dated 4 March 2016, [42].

21. Therefore, the central issue which falls for my consideration in determining whether Ms Quinn remained qualified for DSP on 16 April 2015 (being the date of cancellation), is whether her impairments attracted 20 points or more under the Impairment Tables contained in the 2011 Determination. If they did, it is then necessary to also consider whether she had a continuing inability to work. I deal with those issues below.

    CONSIDERATION

    Ms Quinn’s Contentions – an overview

22. Before I turn to a consideration of the issues, I should make reference to a number of general matters raised by Ms Quinn in her Statement of Facts and Contentions,[23] and in her evidence at the hearing (which she attended by telephone).

    [23] Exhibit 4, Ms Quinn’s Statement of Facts and Contentions, undated (lodged 20 April 2016).

23. Ms Quinn told me that both she and Dr Zahran were under a misapprehension as to what was being asked of them in the DSP review forms. They both understood the questions to have related to the conditions for which she was then receiving DSP and were not inquiring about other conditions from which she was currently suffering. Ms Quinn said that Dr Zahran thought the purpose of the report was to make sure her condition had not improved; he thought that was enough to ensure that she retained DSP. On that basis, he did not mention any additional conditions in his report. Further, Ms Quinn said that Dr Zahran was unaware of the new Impairment Tables.[24]

    [24] Ibid page 1.

24. With respect to the JCA assessment, Ms Quinn says that she felt “ambushed”, as she was told it was a job capacity test rather than a medical review and she was unprepared for it. She says that the JCA twisted her answers and did not accurately report what transpired during the interview. Nor, she said, did the JCA ask her all the relevant questions in the tables.[25]

    [25] Ibid pages 1-3.

25. Ms Quinn also told me that her conditions have worsened since her DSP was cancelled.

26. A number of specific submissions concerning the application of particular tables were also made by Ms Quinn. I deal with those below.

    Did Ms Quinn have 20 points or more under the Impairment Tables?

27. I consider this question by reference to the various conditions identified by Ms Quinn.

    Spinal condition

28. It is not disputed by the Secretary that Ms Quinn suffers from degenerative arthropathy of her lumbar spine and that this condition was fully diagnosed, treated and stabilised at the date of cancellation.[26]

    [26] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 4 March 2016, [43].

29. The question is therefore what impairment rating should be assigned under the relevant table, Table 4 (Spinal Function). The Secretary agreed with the JCA recommendation, that an assignment of five points was appropriate.[27] Ms Quinn, however, contended that 20 points should be assigned in respect of this impairment.[28]

    [27] Ibid [44].

    [28] Exhibit 2, Correspondence from Ms Quinn, undated.

30. Ms Quinn took issue with a number of the statements in the JCA’s report. She said that, contrary to what was reported by the JCA, she had not been able to touch her toes for over 10 years because of the pain she experienced. Asked by the JCA if she could pick up a pencil on the ground, she said that she could, but would have to bend at the knees and would have to have something to hold onto when rising to a standing position. She said that while she could raise her hands just above head height, she could not sustain overhead activities as stated in the table. Ms Quinn said that while she could move her neck, she was not asked if she could look over her shoulder, which she could not. She said that at the conclusion of the JCA interview, she had to place her hands on the desk to help push herself up in order to stand; she continuously shuffled and moved around in her chair during the assessment because of the pain she experienced.[29]

    [29] Exhibit 4, Ms Quinn’s Statement of Facts and Contentions, undated (lodged 20 April 2016), pages 2-3.

31. During cross-examination at the hearing, Ms Quinn expanded upon some other statements made by her and Dr Zahran. She said that the “special exercises” she did as treatment amounted to walking daily. She would walk at a slow pace, but not continuously, for 40 minutes; she would have a break each 10 minutes. Ms Quinn has a driver’s license and an automatic car. She agreed that on a good day, she could drive for one hour; on a bad day, she could drive for 30 minutes. Ms Quinn said that she could not turn her head the whole way (she cannot get her chin to her shoulder). As to activities of daily living, she said that she had tried to do housework but had to get people to help her. She moved in with her friend shortly after the JCA assessment; her friend now does the washing for her. Ms Quinn has no problems in caring for herself. She dresses slowly and wears slip on shoes.

32. Although there were some discrepancies and differences in emphasis between what the JCA and Dr Zahran respectively recorded and what Ms Quinn stated in her Statement of Facts and Contentions and at the hearing, they were relatively minor.

33. Based on Dr Zahran’s report, I am satisfied that Ms Quinn had at least a mild impairment of her spinal function at the relevant time, attracting five impairment points.  Relevantly, Dr Zahran confirmed that Ms Quinn suffered from chronic low back pain for several years and had a restricted range of motion of the lower back.

34. The question is whether there is sufficient evidence to warrant a higher rating for moderate impairment (10 points), or severe impairment (20 points) as contended by Ms Quinn.

35. As to the descriptors for moderate impairment, Ms Quinn was able to bend to knee level. There was no suggestion that she needed the assistance of another person to get up out of a chair. She told the JCA that she had no difficulty turning her head. She also told the SSCSD that she could turn her head as far as the shoulder,[30] which is consistent with what she testified before me. While Ms Quinn said that she was unable to sustain overhead activities, that was based solely on her self-report. The Introduction to Table 4 states that self-report of symptoms alone is insufficient and there must be corroborating evidence of the impairment by the treating doctor, a specialist or an allied health professional. There is no such evidence in this case. On the contrary, Dr Zahran’s report is silent on the matter, it having been confined to her lower back condition. I am unconvinced by Ms Quinn’s explanation for Dr Zahran’s failure to mention other conditions or their impact on her functional ability; the questions asked in the DSP review forms were clear and could not reasonably be read in the restrictive way suggested. For those reasons, I do not believe that the descriptors for moderate impairment have been satisfied.

    [30] Exhibit 1, T Documents, T 2, page 5, SSCSD’s decision and reasons for decision, [10].

36. For the sake of completeness, I do not consider there is any evidence to satisfy the descriptors for severe impairments. Ms Quinn was not unable to perform any overhead activities; she told the JCA that she could stretch her arms above her head, albeit with some pain. She had no difficulty in turning her head to her shoulder and could remain seated for more than 10 minutes. There was no evidence that she was unable to bend forward to pick up a light object from a desk or table. I therefore do not accept that Ms Quinn had a severe impairment under Table 4 at the relevant time.

37. It follows from what I have said that, on the evidence before me, Ms Quinn suffered a mild impairment at the relevant time, attracting five impairment points under Table 4.

    Hypothyroidism

38. There is no dispute that Ms Quinn’s Hypothyroidism was fully diagnosed, treated and stabilised at the time of cancellation.[31]

    [31] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 4 March 2016, [49].

39. Dr Zahran confirmed that the condition was well managed and caused minimal or limited impact on Ms Quinn’s ability to function. Similarly, Ms Quinn confirmed to the JCA that the condition was chronic, well managed and had no impact on function.[32]

    [32] Exhibit 1, T Documents, T 8, page 70, JCA report dated 19 March 2015.

1. The question therefore is what impairment points should be assigned under the relevant table, Table 1 (Functions requiring Physical Exertion and Stamina). The Secretary submitted that 0 points should be assigned under that table.[33] Ms Quinn contended that her condition caused severe functional impact for which 20 points should be assigned.[34]

   [33] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 4 March 2016, [51].

   [34] Exhibit 2, Correspondence from Ms Quinn, undated, page 1.

2. There is no dispute that at the relevant time, Ms Quinn walked daily (with 10 minute breaks) as part of her “special exercises” to treat her lower back condition. Even on a bad day, she could drive her car for 30 minutes. At the relevant time, she was able to undertake the normal activities of daily life, including housework and caring for herself.

3. I also note that Ms Quinn told the JCA that she was studying to be a teacher’s aide and that she undertook eight hours of study per week, although she had some difficulty in maintaining concentration.[35]

   [35] Exhibit 1, T Documents, T 8, page 72, JCA report dated 19 March 2015.

4. Having regard to those matters, I do not believe that, at the relevant time, there was any functional impact on Ms Quinn’s activities requiring physical exertion or stamina arising from her Hypothyroidism. I therefore consider that zero points should be assigned in respect of this impairment.

   PTSD

5. The Secretary accepted that Ms Quinn suffers from PTSD.[36] However, it was said that Ms Quinn’s PTSD was not fully diagnosed, treated and stabilised at the time of cancellation, such that no impairment points could be assigned in respect of it.

   [36] Exhibit 3, Secretary’s Statement of Facts and Contentions, dated 4 March 2016, [54].

6. I agree with, and accept, the Secretary’s submission on this aspect.

7. The Introduction to Table 5 (Mental Health Function) requires the diagnosis of the relevant condition to be made by an appropriately qualified medical practitioner with evidence from a clinical psychologist (if the diagnosis is not made by a psychiatrist).  Although Ms Quinn told the JCA that she was diagnosed with PTSD by a doctor in New South Wales, no evidence of that consultation and diagnosis was produced. Nor was any other evidence produced from a psychiatrist or clinical psychologist confirming such a diagnosis either prior to, or at, the relevant time. I therefore do not consider that this condition was fully diagnosed at the date of cancellation.

8. Ms Quinn told the JCA that she saw a psychologist more than a year earlier, and received some counselling from Lifeline. She had been treated with anti-depressant medication in the past, but had not sought treatment from the doctor who was then treating her in Hervey Bay (presumably, Dr Zahran). In those circumstances, and without further evidence, I am not satisfied that her PTSD could be said to have been fully treated and stabilised at the date of cancellation.

9. For those reasons, I do not accept that Ms Quinn’s PTSD was fully diagnosed, treated and stabilised at the relevant time. Therefore, it cannot attract any impairment points.

10. At the hearing, Ms Quinn told me that she was under psychiatric care with Queensland Health and that she had two mental breakdowns since her DSP was cancelled. While those matters would be relevant to any fresh claim Ms Quinn might lodge, I am precluded from taking them into account in the present context, of reviewing the decision to cancel her DSP on 16 April 2015.

    Conditions impacting on cognitive function

11. In his medical report, Dr Zahran noted that Ms Quinn had “difficulty to maintain concentration because of ongoing pain”.[37]

    [37] Exhibit 1, T Documents, T 7, page 61, Medical report of Dr Mohaned Zahran, undated.

12. That raises the question whether Ms Quinn could be assigned impairment points under Table 7 (Brain Function), which is used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function.

13. The difficulty, however, is that there is no detailed medical evidence specifying the degree to which Ms Quinn’s pain affects her cognitive functioning, so that the descriptors under the table can be meaningfully considered. Dr Zahran’s brief comment unfortunately does not address that question. Under cross-examination, Ms Quinn confirmed that she had not obtained any reports with respect to cognitive or neurological function as at the date of cancellation. In the absence of any such evidence, I am unable to consider the application of this table.

14. I am also conscious of the fact that Ms Quinn told the JCA that due to her PTSD, she has poor ability to concentrate.[38] As that condition was not fully treated and stabilised at the relevant time, it is difficult to determine whether it caused or contributed to Ms Quinn’s lack of concentration. I therefore agree with, and accept, the Secretary’s submission that in the circumstances it is premature to assign any impairment points under the table.[39] 

    [38] Exhibit 1, T Documents, T 8, page 69, JCA report dated 19 March 2015.

    [39] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 4 March 2016, [62].

    Overall impairment rating

15. To summarise, I consider that at the relevant time, Ms Quinn had five impairment points, they being assigned under Table 4 (Spinal Function).

16. As a consequence, I do not believe that she qualified for DSP at the time of cancellation, since she did not satisfy the requirement in s 94(1)(b) of the Act.

    Did Ms Quinn have a continuing inability to work?

17. In light of my conclusion that Ms Quinn did not have the required impairment points at the date of cancellation and for that reason, did not qualify for DSP, it is not necessary for me to address this question.

    CONCLUSION

18. I do not consider that Ms Quinn qualified for DSP at the date of cancellation, as she did not have, at the relevant time, 20 or more impairment points as required by s 94(1)(b) of the Act.

19. The decision under review is therefore affirmed.

20. I am conscious of what Ms Quinn told me at the hearing, that her conditions had worsened since her DSP was cancelled. While I was unable to take those more recent matters into account in dealing with the present application, they would nevertheless seem relevant to any fresh claim for DSP that Ms Quinn may lodge.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

.....................[sgd]........................................

Associate

Dated 13 May 2016

Date(s) of hearing	27 April 2016
Applicant	In person
Respondent	Department of Human Services